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State v. Perry

Court of Appeals of Ohio, Seventh District, Mahoning

March 15, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
WAYNE PERRY DEFENDANT-APPELLANT

         Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 14 CR 619

          For Plaintiff-Appellee: Atty. Paul J. Gains Mahoning County Prosecutor Atty. Ralph M. Rivera Assistant Prosecuting Attorney

          For Defendant-Appellant: Atty. Ross T. Smith

          Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Carol Ann Robb

          OPINION

          WAITE, J.

         {¶1} Appellant Wayne Perry appeals from his convictions and sentence following a Crim.R. 11 plea agreement he entered into in the Mahoning County Common Pleas Court. Appellant's counsel filed a no merit brief requesting leave to withdraw. A complete review of the case reveals no appealable issues. Accordingly, appointed counsel's motion to withdraw is granted and Appellant's convictions and sentence are affirmed.

         Factual and Procedural History

         {¶2} Appellant was charged with one count of receiving stolen property, a felony of the fifth degree in violation of R.C. 2913.51(A), and one count of misuse of a credit card, a felony of the fifth degree in violation of R.C. 2913.21(A)(1). The state later dismissed the misuse charge.

         {¶3} On April 14, 2015, the trial court held a plea hearing where Appellant pleaded guilty to the sole charge in the indictment. The state agreed to recommend the following sentence: community control with local incarceration, restitution, and a no contact order with the victims. The state also agreed to stand silent as to judicial release. On June 3, 2015, Appellant was arrested and charged with felonious assault in Trumbull County.

         {¶4} On August 3, 2015, the trial court held a sentencing hearing. Based on Appellant's pending criminal charge, the state changed its recommendation in this matter to one year of incarceration and restitution. The trial court noted that Appellant had not yet been convicted of felonious assault, but agreed with the state's recommendation based on Appellant's lengthy criminal record. The court sentenced him to one year of incarceration and ordered him to pay restitution to the victims. The court suspended the fines and costs. Appellant timely appeals.

         No Merit Brief

         {¶5} Based on a review of this matter, appellate counsel seeks to withdraw after finding no potentially meritorious arguments for appeal. This filing is known as a no merit brief or an Anders brief. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.E.2d 493 (1967). In our district, it is referred to as a Toney brief. See State v. Toney, 23 Ohio App.2d 203, 262 N.E.2d 419 (7th Dist.1970).

         {¶6} In Toney, we established the procedure to be used when appellate counsel wishes to withdraw from a case deemed a frivolous appeal.

3. Where a court-appointed counsel, with long and extensive experience in criminal practice, concludes that the indigent's appeal is frivolous and that there is no assignment of error which could be arguably supported on appeal, he should so advise the appointing court by brief ...

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